exv10w1






Exhibit 10.1




Execution Version




$850,000,000




Dr Pepper Snapple Group, Inc.




$400,000,000 1.70% Senior Notes due 2011

$450,000,000 2.35% Senior Notes due 2012




Underwriting Agreement




December 14, 2009




Morgan Stanley & Co. Incorporated

UBS Securities LLC

     As Managers of the several Underwriters

     named in Schedule II hereto




	 	 	 
	c/o

	 	Morgan Stanley & Co. Incorporated
	 

	 	1585 Broadway
	 

	 	New York, New York 10036






Ladies and Gentlemen:




     Dr Pepper Snapple Group, Inc., a Delaware corporation (the “Company”), proposes to issue and
sell to the several underwriters named in Schedule II hereto (the “Underwriters”), for whom you are
acting as managers (the “Managers”), $400,000,000 aggregate principal amount of its 1.70% Notes due
2011 (the “Notes due 2011”) and $450,000,000 aggregate principal amount of its 2.35% Notes due 2012
(the “Notes due 2012” and, together with the Notes due 2011, the “Securities”), to be issued under
an indenture (the “Base Indenture”) to be dated as of December 15, 2009, between the Company and
Wells Fargo Bank, N.A., as trustee (the “Trustee”), as supplemented by a first supplemental
indenture (the “First Supplemental Indenture,” and, together with the Base Indenture, the
“Indenture”) between the Company, the Guarantors (as defined below) and the Trustee. The
Securities will be guaranteed (the “Guarantees”) on an unsecured unsubordinated basis by each of
the entities (the “Guarantors”) listed on Schedule III hereto. If the firm or firms listed in
Schedule II hereto include only the Managers listed in Schedule I hereto, then the terms
“Underwriters” and “Managers” as used herein shall each be deemed to refer to such firm or firms.



     The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement (File No. 333-163697), including a prospectus, on Form S-3, relating to
securities (the “Shelf Securities”), including



 









 







the Securities, to be issued from time to time by
the Company. The registration statement as amended to the date of this Agreement, including the
information (if
any) deemed to be part of the registration statement at the time of effectiveness pursuant to
Rule 430A or Rule 430B under the Securities Act of 1933, as amended (the “Securities Act”), is
hereinafter referred to as the “Registration Statement,” and the related prospectus covering the
Shelf Securities dated December 14, 2009 in the form first used to confirm sales of the Securities
(or in the form first made available to the Underwriters by the Company to meet requests of
purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Basic
Prospectus.” The Basic Prospectus, as supplemented by the prospectus supplement specifically
relating to the Securities in the form first used to confirm sales of the Securities (or in the
form first made available to the Underwriters by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Prospectus,” and
the term “preliminary prospectus” means any preliminary form of the Prospectus. For purposes of
this Agreement, “Applicable Time” shall be the date and time set forth on Schedule I. For purposes
of this Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under the
Securities Act, “Time of Sale Prospectus” means the preliminary prospectus together with the free
writing prospectuses, if any, each identified in Schedule I hereto, and “broadly available road
show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities
Act that has been made available without restriction to any person. As used herein, the terms
“Registration Statement,” “Basic Prospectus,” “preliminary prospectus,” “Time of Sale Prospectus”
and Prospectus shall include the documents, if any, incorporated by reference therein. The terms
“supplement,” “amendment,” and “amend” as used herein with respect to the Registration Statement,
the Basic Prospectus, the Time of Sale Prospectus, any preliminary prospectus or free writing
prospectus shall include all documents subsequently filed by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), that are deemed
to be incorporated by reference therein.



     1. Representations and Warranties. The Company represents and warrants to and agrees with
each of the Underwriters as of the date hereof, as of the Applicable Time and as of the Closing
Date (as defined in Section 4) that:




     (a) The Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for such
purpose are pending before or, to the knowledge of the Company, threatened by the
Commission. If the Registration Statement is an automatic shelf registration statement as
defined in Rule 405 under the Securities Act, the Company is a well-known seasoned issuer
(as defined in Rule 405 under the Securities Act) eligible to use the Registration
Statement as an automatic shelf registration statement and the Company has not received
notice that the Commission



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objects to the use of the Registration Statement as an
automatic shelf registration statement.




     (b) (i) Each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Time of Sale Prospectus or the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part of the
Registration Statement, when such part became effective, did not contain, and each such
part, as amended or supplemented, if applicable, will not contain any untrue statement of
a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (iii) the Registration Statement
as of the date hereof does not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements
therein not misleading, (iv) the Registration Statement and the Prospectus comply, and as
amended or supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission thereunder, (v)
the Time of Sale Prospectus does not, and at the time of each sale of the Securities in
connection with the offering when the Prospectus is not yet available to prospective
purchasers and at the Closing Date (as defined in Section 4), the Time of Sale Prospectus,
as then amended or supplemented by the Company, if applicable, will not, contain any
untrue statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, (vi) each broadly available road show, if any, when considered together with
the Time of Sale Prospectus, does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading and (vii) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this paragraph do
not apply to statements or omissions in the Registration Statement, the Time of Sale
Prospectus or the Prospectus based upon information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the Managers expressly for use
therein.




     (c) The Company is not an “ineligible issuer” in connection with the offering
pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus
that the Company is required to file pursuant to Rule 433(d) under the Securities Act has
been, or will be, filed with the Commission in accordance with the requirements of the
Securities Act and the applicable rules and regulations of the Commission



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thereunder.
Each free writing prospectus that the Company has filed, or is required to file, pursuant
to Rule 433(d) under the Securities Act or that
was prepared by or behalf of or used or referred to by the Company complies or will
comply in all material respects with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder. Except for the free
writing prospectuses, if any, identified in Schedule I hereto, and electronic road shows,
if any, each furnished to you before first use, the Company has not prepared, used or
referred to, and will not, without your prior consent, prepare, use or refer to, any free
writing prospectus.




     (d) Each preliminary prospectus filed as part of the registration statement as
originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under
the Securities Act, complied when so filed in all material respects with the Securities
Act and the applicable rules and regulations of the Commission thereunder.




     (e) The financial statements and the related notes thereto included or incorporated
by reference in each of the Time of Sale Prospectus and the Prospectus present fairly, in
all material respects, the financial position of the Company and its consolidated
subsidiaries as of the dates indicated and the results of their operations and the changes
in their cash flows for the periods specified; such financial statements have been
prepared in conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods covered thereby; and the other financial
information included in each of the Time of Sale Prospectus and the Prospectus presents
fairly, in all material respects, the information shown thereby as of the dates indicated.




     (f) Except as otherwise disclosed in the Time of Sale Prospectus and the Prospectus,
since the date of the most recent financial statements of the Company included or
incorporated in each of the Time of Sale Prospectus and the Prospectus, (i) there has not
been any change in the capital stock (other than as a result of exercises of stock options
or issuances under employee benefit plans) or increases in long-term debt of the Company
or any of its subsidiaries, or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the business, properties, financial
position, results of operations of the Company and its subsidiaries, taken as a whole; and
(ii) neither the Company nor any of its subsidiaries has sustained any loss or
interference with its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor disturbance or dispute or any action, order or
decree of any court or arbitrator or governmental or regulatory authority having
jurisdiction over the Company and its subsidiaries, except in the case of this clause (ii)
for any such loss or interference that would not, individually or in the aggregate, have a
material adverse effect on the business, financial position, results of



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operations or
prospects of the Company and its subsidiaries, taken as a
whole, or on the performance by the Company or the Guarantors of their obligations
under the Securities and the Guarantees (a “Material Adverse Effect”).




     (g) The Company and the Guarantors have been duly organized and are validly existing
and in good standing under the laws of their respective jurisdictions of organization, are
duly qualified to do business and are in good standing in each jurisdiction in which their
respective ownership or lease of property or the conduct of their respective businesses
requires such qualification, except where the failure to be so qualified or in good
standing would not, individually or in the aggregate, have a Material Adverse Effect. The
Company and the Guarantors have all power and authority necessary to own or hold their
respective properties and to conduct the businesses in which they are engaged.




     (h) The Company has an authorized capitalization as set forth in each of the Time of
Sale Prospectus and the Prospectus under the heading “Capitalization”; and all the
outstanding shares of capital stock or other equity interests of each subsidiary of the
Company have been be duly and validly authorized and issued, are fully paid and non-assessable, except where the failure to be so authorized, issued, fully paid and
non-assessable would not, individually or in the aggregate, have a Material Adverse Effect,
and are owned directly or indirectly by the Company (except in the case of any foreign
subsidiary, for directors’ qualifying shares), free and clear of any material lien,
charge, encumbrance, security interest, restriction on voting or transfer or any other
claim of any third party.




     (i) The Company has full power and authority to execute and deliver this Agreement,
the Securities and the Indenture (collectively, the “Company Transaction Documents”) and
to perform its obligations hereunder and thereunder. Each Guarantor has full power and
authority to execute and deliver the Indenture (including each Guarantee set forth in the
Indenture) (collectively, the “Guarantor Transaction Documents” and, together with the
Company Transaction Documents, the “Transaction Documents”). All action required to be
taken by the Company for the due and proper authorization, execution and delivery of each
of the Company Transaction Documents and the consummation of the transactions contemplated
thereby has been duly and validly taken. All action required to be taken by each of the
Guarantors for the due and proper authorization, execution and delivery of the Guarantor
Transaction Documents and the consummation of the transactions contemplated thereby will
have been duly and validly taken.




     (j) The Indenture has been duly authorized by the Company and the Guarantors and,
when executed and delivered by the Company and



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the Guarantors, and assuming due authorization, execution and delivery thereof by the
Trustee, will constitute a valid and legally binding agreement of the Company and the
Guarantors, enforceable against the Company and the Guarantors in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or similar laws affecting the enforcement
of creditors’ rights generally or by equitable principles relating to enforceability
(collectively, the “Enforceability Exceptions”); the Indenture has been duly qualified
under the Trust Indenture Act.




     (k) The Securities have been duly authorized by the Company and, when executed and
delivered by the Company pursuant to the terms of this Agreement, and assuming due
authentication thereof by the Trustee, will be duly executed, authenticated, issued and
delivered as provided in the Indenture and, when paid for as provided herein, will be duly
and validly issued and outstanding and will constitute valid and legally binding
obligations of the Company enforceable against the Company in accordance with their terms,
subject to the Enforceability Exceptions, and will be entitled to the benefits of the
Indenture.




     (l) The Guarantees have been duly authorized by the Guarantors and, when the
Indenture has been executed and delivered by the Guarantors, will constitute valid and
legally binding agreements of the Guarantors, enforceable against the Guarantors in
accordance with their terms, subject to the Enforceability Exceptions.




     (m) This Agreement has been duly authorized, executed and delivered by the Company.




     (n) Each of the Transaction Documents conforms in all material respects to the
descriptions thereof contained in each of the Time of Sale Prospectus and the Prospectus.




     (o) Neither the Company nor any of its subsidiaries are (i) in violation of their
respective charters or by-laws or similar organizational documents; (ii) in default, and
no event has occurred that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or assets of the Company or
its subsidiaries is subject; or (iii) in violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or governmental or regulatory
authority, except, in the case of clauses (ii) and (iii) above, for any such
default or violation that would not, individually or in the aggregate, have a
Material Adverse Effect.



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     (p) The execution, delivery and performance by the Company and each of the Guarantors
of each of the Transaction Documents to which it is a party, the issuance and sale of the
Securities (including the Guarantees thereof) and compliance by the Company and each
Guarantor, as applicable, with the terms thereof and the consummation of the transactions
contemplated by the Transaction Documents will not (i) conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or the Guarantors pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or any of the
Guarantors is a party or by which the Company or any of the Guarantors is bound or to
which any of the property or assets of the Company or any of the Guarantors is subject,
(ii) result in any violation of the provisions of the charter or by laws or similar
organizational documents of the Company or any of the Guarantors or (iii) result in the
violation of any law or statute or any judgment, order, rule or regulation of any court or
arbitrator or governmental or regulatory authority having jurisdiction over the Company or
any of the Guarantors, except, in the case of clauses (i) and (iii) above, for any such
conflict, breach, violation or default that would not, individually or in the aggregate,
have a Material Adverse Effect.




     (q) No consent, approval, authorization, order, registration or qualification of or
with any court or arbitrator or governmental or regulatory authority is required for the
execution, delivery and performance by the Company and each Guarantor, as applicable, of
each of the Transaction Documents to which it is a party, the issuance and sale of the
Securities (including the Guarantees thereof) and compliance by the Company and each
Guarantor with the terms thereof and the consummation of the transactions contemplated by
the Transaction Documents, except for such consents, approvals, authorizations, orders and
registrations or qualifications as may be required under applicable state securities laws
in connection with the purchase and resale of the Securities by the Underwriters.




     (r) Except as described in each of the Time of Sale Prospectus and the Prospectus,
there are no legal, governmental or regulatory investigations, actions, suits or
proceedings pending to which the Company, or any of its subsidiaries is a party or to
which any property or assets of the Company or any of its subsidiaries is the subject
that, individually or in the aggregate, if determined adversely to the Company or any of
its subsidiaries, would have a Material Adverse Effect; and to the
knowledge of the Company or its subsidiaries, no such investigations, actions, suits
or proceedings are threatened.



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     (s) Deloitte & Touche LLP, who has audited certain combined financial statements of
the Company, is an independent registered public accounting firm with respect to the
Company within the applicable rules and regulations adopted by the Commission and the
Public Company Accounting Oversight Board (United States) and as required by the
Securities Act.




     (t) The Company and its subsidiaries have good and marketable title in fee simple to,
or have valid rights to lease or otherwise use, all items of real and personal property
that are material to the Company and its subsidiaries, taken as a whole, in each case free
and clear of all liens, encumbrances, claims and defects except those that (i) do not
materially interfere with the use made and proposed to be made of such property by the
Company and its subsidiaries or (ii) would not, individually or in the aggregate, have a
Material Adverse Effect.




     (u) Except as would not, individually or in the aggregate, have a Material Adverse
Effect: (i) the Company and its subsidiaries own or possess the right to use all material
patents, patent applications, trademarks, service marks, trade names, copyrights, know-how
and trade secrets (collectively, “Intellectual Property”) necessary for the conduct of
this respective businesses as currently conducted, and (ii) to the knowledge of the
Company and its subsidiaries, the conduct of their respective businesses, as currently
conducted does not infringe, misappropriate or otherwise conflict with any Intellectual
Property of any third party, and (iii) the Company and its subsidiaries have not received
any written notice of any claim against the Company or its subsidiaries concerning the
foregoing.




     (v) Neither the Company nor any of the Guarantors is, and after giving effect to the
offering and sale of the Securities and the application of the proceeds of the sale of the
Securities as described in each of the Time of Sale Prospectus and the Prospectus, them
will be, an “investment company” or an entity “controlled” by an “investment company”
within the meaning of the Investment Company Act of 1940, as amended, and the rules and
regulations of the Commission thereunder (collectively, the “Investment Company Act”).




     (w) The Company and its subsidiaries have paid all federal, state, local and foreign
taxes and filed all tax returns required to be paid or filed through the date hereof,
except taxes that are being contested in good faith by appropriate proceedings and for
which the Company or the applicable subsidiary has set aside an adequate reserve for its
potential
liability or to the extent the failure to pay such taxes or file such returns would
not, individually or in the aggregate, have a Material Adverse Effect, and, except as
would not, individually or in the aggregate, have a Material Adverse Effect, all such tax
returns are true, complete and



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correct; and except as otherwise disclosed in each of the
Time of Sale Prospectus and the Prospectus, there is no tax deficiency that has been
asserted against the Company or any of its subsidiaries or any of their respective
properties or assets that would, individually or in the aggregate, have a Material Adverse
Effect.




     (x) The Company and its subsidiaries possess all licenses, certificates, permits or
other authorizations (“Permits”) issued by appropriate federal, state, local or foreign
governmental or regulatory authorities that are necessary for the ownership or lease of
their respective properties or the conduct of their respective businesses as described in
each of the Time of Sale Prospectus and the Prospectus, and have fulfilled all material
obligations with respect to such Permits, except where the failure to possess such Permits
or perform such obligations would not, individually or in the aggregate, have a Material
Adverse Effect; and except as described in each of the Time of Sale Prospectus and the
Prospectus, neither the Company nor any of its subsidiaries has received notice of any
revocation or modification of any Permit or has any knowledge that any such Permit will
not be renewed in the ordinary course, except for such revocations, modifications or
renewals as would not, individually or in the aggregate, have a Material Adverse Effect.




     (y) No labor disturbance by or dispute with employees of the Company or any of its
subsidiaries exists or, to the knowledge of the Company or its subsidiaries, is
contemplated or threatened, except as would not, individually or in the aggregate, have a
Material Adverse Effect.




     (z) (i) The Company and its subsidiaries (x) are in compliance with any and all
applicable federal, state, local and foreign laws, rules, regulations, requirements,
decisions and orders relating to the protection of human health or safety, the
environment, natural resources, hazardous or toxic substances or wastes, pollutants or
contaminants (collectively, “Environmental Laws”), (y) have received and are in compliance
with all permits, licenses, certificates or other authorizations or approvals required of
them under applicable Environmental Laws to conduct their respective businesses, and (z)
have not received notice of any actual or potential liability under or relating to any
Environmental Laws, including for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants, and have
no knowledge of any event or condition that would reasonably be expected to result in any
such notice, and (ii) there are no costs or liabilities associated
with Environmental Laws relating to the Company or its subsidiaries, except in the
case of each of (i) and (ii) above, for any such failure to comply, or failure to receive
required permits, licenses or approvals, or cost or liability, as would not, individually
or in the aggregate, have a Material Adverse Effect.



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     (aa) Except as otherwise disclosed in the Time of Sale Prospectus and the Prospectus
and as would not, individually or in the aggregate, have a Material Adverse Effect, (i)
each employee benefit pension plan, within the meaning of Section 3(2) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”) subject to Title IV of ERISA
that is maintained and established by the Company or any member of its “Controlled Group”
(defined as any organization which is a member of a controlled group of corporations
within the meaning of Section 414 of the Internal Revenue Code of 1986, as amended (the
“Code”)) (each, a “Pension Plan”) has been maintained in compliance with its terms and the
requirements of any applicable statutes, orders, rules and regulations, including but not
limited to ERISA and the Code; (ii) no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Pension
Plan excluding transactions effected pursuant to a statutory or administrative exemption;
(iii) for each Pension Plan that is subject to the funding rules of Section 412 of the
Code or Section 302 of ERISA, no “accumulated funding deficiency” as defined in Section
412 of the Code, whether or not waived, has occurred or is reasonably expected to occur;
(iv) the fair market value of the assets of each Plan exceeds the present value of all
benefits accrued under such Plan (determined based on those assumptions used to fund such
Plan); (v) no “reportable event” (within the meaning of Section 4043(c) of ERISA) not
waived by the PBGC has occurred or is reasonably expected to occur; and (vi) neither the
Company nor any member of the Controlled Group has incurred, nor reasonably expects to
incur, any liability under Title IV of ERISA (other than contributions to a Pension Plan
or premiums to the PBGC, in the ordinary course and without default) with respect to the
termination of a Pension Plan (or the withdrawal from a “multiemployer plan”, within the
meaning of Section 4001(a)(3) of ERISA), except in the case of clauses (iii) and (iv) as
disclosed in the Time of Sale Prospectus and the Prospectus.




     (bb) The Company maintains an effective system of “disclosure controls and
procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure
that information required to be disclosed by the Company in reports that it files or
submits under the Exchange Act is recorded, processed, summarized and reported within the
time periods specified in the Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated and communicated to the
Company’s management as
appropriate to allow timely decisions regarding required disclosure. The Company
maintains systems of “internal control over financial reporting” (as defined in Rule
13a-15(f) of the Exchange Act) that comply with the requirements of the Exchange Act and
have been designed by, or under the supervision of, their respective principal executive
and principal financial officers, or persons performing similar functions, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation
of



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financial statements for external purposes in accordance with generally accepted
accounting principles. The Company maintains internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with respect to
any differences. At September 30, 2009, there were no material weaknesses in the Company’s
internal controls over financial reporting.




     (cc) The Company and its subsidiaries have insurance covering their respective
properties, operations, personnel and businesses, including business interruption
insurance, which insurance is in amounts and insures against such losses and risks as the
Company deems are adequate and customary for companies engaged in a similar business to
protect the Company and its subsidiaries and their respective businesses; and the Company
has no reason to believe that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage at reasonable cost from
similar insurers as may be necessary to continue its business.




     (dd) Neither the Company nor any of its subsidiaries has taken, directly or
indirectly, any action designed to or that would reasonably be expected to cause or result
in any stabilization or manipulation of the price of the Securities.




     (ee) Nothing has come to the attention of the Company that has caused the Company to
believe that the statistical and market-related data included in each of the Time of Sale
Prospectus and the Prospectus is not based on or derived from sources that are reliable
and accurate in all material respects.




     (ff) The Company is in compliance in all material respects with the applicable
provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations of the
Commission adopted pursuant thereto as such rules
and regulations currently apply to the Company (collectively, the “Sarbanes-Oxley
Act”).




     (gg) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly



11









 







or indirectly use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person or
entity, for the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.




     (hh) The operations of the Company and its subsidiaries are and have been conducted
at all times in material compliance with applicable financial recordkeeping and reporting
requirements and the money laundering statutes and the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no
action, suit or proceeding by or before any court or governmental agency, authority or
body or any arbitrator involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.




     (ii) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer or employee of the Company or any of its subsidiaries is
aware of or has taken any action, directly or indirectly, that would result in a violation
by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (the “FCPA”), including, without limitation, making use of the
mails or any means or instrumentality of interstate commerce corruptly in furtherance of
an offer, payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of value to
any “foreign official” (as such term is defined in the FCPA) or any foreign political
party or official thereof or any candidate for foreign political office, in contravention
of the FCPA; and the Company and its subsidiaries have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and procedures designed
to ensure, and which are reasonably expected to continue to ensure, continued compliance
therewith.



     2. Agreements to Sell and Purchase. The Company hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions hereinafter
stated, agrees, severally and not jointly, to purchase from the Company the respective principal
amounts of Securities set forth in Schedule II hereto opposite its name at the purchase price set
forth in Schedule I hereto.



     3. Public Offering. The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Securities as soon after the Registration
Statement and this Agreement have become effective as in your judgment is advisable. The Company
is further



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advised by you that the Securities are to be offered to the public upon the terms set
forth in the Prospectus.



     4. Payment and Delivery. Payment for the Securities shall be made to the Company in Federal
or other funds immediately available in New York City on the closing date and time set forth in
Schedule I hereto, or at such other time on the same or such other date, not later than the fifth
business day thereafter, as may be designated in writing by you. The time and date of such payment
are hereinafter referred to as the “Closing Date.”



     Payment for the Securities shall be made against delivery to you on the Closing Date for the
respective accounts of the several Underwriters of the Securities registered in such names and in
such denominations as you shall request in writing not later than one full business day prior to
the Closing Date, with any transfer taxes payable in connection with the transfer of the Securities
to the Underwriters duly paid.



     5. Conditions to the Underwriters’ Obligations. The several obligations of the Underwriters
are subject to the following conditions:




     (a) Subsequent to the execution and delivery of this Agreement and prior to the
Closing Date:




     (i) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded the Company
or any of the securities of the Company or any of its subsidiaries or in the rating
outlook for the Company by any “nationally recognized statistical rating organization,” as
such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and




     (ii) there shall not have occurred any change, or any development involving a
prospective change, in or affecting the business, properties, financial position, results
of operations of the Company and its subsidiaries, taken as a whole, from that set forth
in the Time of Sale Prospectus as of the date of this Agreement that, in your judgment, is
material and adverse and that makes it, in your judgment, impracticable to
market the Securities on the terms and in the manner contemplated in the Time of Sale
Prospectus.




     (b) The Underwriters shall have received on the Closing Date a certificate, dated the
Closing Date and signed by an executive officer of the Company, to the effect set forth in
Section 5(a) above and to the effect that the representations and warranties of the
Company contained in this Agreement are true and correct as of the Closing Date and that
the Company has complied with all of the agreements and satisfied all of the



13









 







conditions on
its part to be performed or satisfied hereunder on or before the Closing Date.



     The officer signing and delivering such certificate may rely upon the best of his or her
knowledge as to proceedings threatened.




     (c) Baker Botts L.L.P., counsel for the Company, shall have furnished to the
Managers, at the request of the Company, their written opinion and 10b-5 statement, dated
the Closing Date and addressed to the Underwriters, in form and substance reasonably
satisfactory to the Managers, to the effect set forth in Exhibit A hereto.




     (d) James L. Baldwin, Jr., Executive Vice President and General Counsel of the
Company, shall have furnished to the Managers, at the request of the Company, his written
opinion and 10b-5 statement, dated the Closing Date and addressed to the Underwriters, in
form and substance reasonably satisfactory to the Managers, to the effect set forth in
Exhibit B hereto.




     (e) The Underwriters shall have received on the Closing Date an opinion of Mayer
Brown LLP, counsel for the Underwriters, dated such date, in form and substance reasonably
satisfactory to the Managers.




     (f) The Underwriters shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be, in form and
substance satisfactory to the Underwriters, from Deloitte & Touche LLP, independent public
accountants, containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements
and certain financial information contained in the Registration Statement, the Time of
Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date
shall use a “cut-off date” not earlier than the date hereof.



     All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Managers.



     6. Covenants of the Company. The Company covenants with each Underwriter as follows:




     (a) To furnish to you, without charge, a signed copy of the Registration Statement
(including exhibits thereto and documents incorporated by reference therein) and to
deliver to each of the Underwriters during the period mentioned in Section 6(e) or 6(f)
below, as many copies of the Time of Sale Prospectus, the Prospectus, any



14









 







documents
incorporated by reference therein and any supplements and amendments thereto or to the
Registration Statement as you may reasonably request.




     (b) Before amending or supplementing the Registration Statement, the Time of Sale
Prospectus or the Prospectus, to furnish to you a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to which you
reasonably object.




     (c) To furnish to you a copy of each proposed free writing prospectus to be prepared
by or on behalf of, used by, or referred to by the Company and not to use or refer to any
proposed free writing prospectus to which you reasonably object.




     (d) Not to take any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under the Securities Act a
free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter
otherwise would not have been required to file thereunder.




     (e) If the Time of Sale Prospectus is being used to solicit offers to buy the
Securities at a time when the Prospectus is not yet available to prospective purchasers
and any event shall occur or condition exist as a result of which it is necessary to amend
or supplement the Time of Sale Prospectus in order to make the statements therein, in the
light of the circumstances, not misleading, or if any event shall occur or condition exist
as a result of which the Time of Sale Prospectus conflicts with the information contained
in the Registration Statement then on file, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply
with applicable law, forthwith to prepare, file with the Commission and furnish, at its
own expense, to the Underwriters and to any dealer upon request, either amendments or
supplements to the Time of Sale Prospectus so that the statements in the Time of Sale
Prospectus as so amended or supplemented will not, in the light of the circumstances when
the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so
that
the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with
the Registration Statement, or so that the Time of Sale Prospectus, as amended or
supplemented, will comply with applicable law.




     (f) If, during such period after the first date of the public offering of the
Securities as in the opinion of counsel for the Underwriters the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to
be delivered in connection with sales by an Underwriter or dealer, any event shall occur
or condition exist



15









 







as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the circumstances when
the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities
Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and furnish, at its own
expense, to the Underwriters and to the dealers (whose names and addresses you will
furnish to the Company) to which Securities may have been sold by you on behalf of the
Underwriters and to any other dealers upon request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice
referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will comply with
applicable law.




     (g) To endeavor to qualify the Securities for offer and sale under the securities or
Blue Sky laws of such jurisdictions as you shall reasonably request; provided, that in no
event shall the Company be obligated to qualify to do business in any jurisdiction where
it is not now so qualified, to take any action that would subject it generally to service
of process in suits in any jurisdiction where it is not now subject or subject itself to
taxation in any such jurisdiction where it is not now subject.




     (h) To make generally available to the Company’s security holders and to you as soon
as practicable an earning statement covering a period of at least twelve months beginning
with the first fiscal quarter of the Company occurring after the date of this Agreement
which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules
and regulations of the Commission thereunder.




     (i) Whether or not the transactions contemplated in this Agreement are consummated or
this Agreement is terminated, to pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including: (i) the fees,
disbursements and expenses
of the Company’s counsel and the Company’s accountants in connection with the
registration and delivery of the Securities under the Securities Act and all other fees or
expenses in connection with the preparation and filing of the Registration Statement, any
preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing
prospectus prepared by or on behalf of, used by, or referred to by the Company and
amendments and supplements to any of the foregoing, including the filing fees payable to
the Commission relating to the Securities (within the time required by Rule 456 (b)(1), if
applicable), all printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the quantities hereinabove specified,
(ii) all costs and expenses



16









 







related to the transfer and delivery of the Securities to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of
printing or producing any Blue Sky or legal investment memorandum in connection with the
offer and sale of the Securities under state securities laws and all expenses in
connection with the qualification of the Securities for offer and sale under state
securities laws as provided in Section 6(g) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or legal investment memorandum, (iv) all
filing fees and the reasonable fees and disbursements of counsel to the Underwriters
incurred in connection with the review and qualification of the offering of the Securities
by the National Association of Securities Dealers, Inc., (v) any fees charged by the
rating agencies for the rating of the Securities, (vi) the cost of the preparation,
issuance and delivery of the Securities, (vii) the costs and charges of any trustee,
transfer agent, registrar or depositary, (viii) the costs and expenses of the Company
relating to investor presentations on any “road show” undertaken in connection with the
marketing of the offering of the Securities, including, without limitation, expenses
associated with the preparation or dissemination of any electronic road show, expenses
associated with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the prior approval
of the Company, travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and the cost of any aircraft chartered in connection
with the road show, (ix) the document production charges and expenses associated with
printing this Agreement and (x) all other costs and expenses incident to the performance
of the obligations of the Company hereunder for which provision is not otherwise made in
this Section. It is understood, however, that except as provided in this Section, Section 8 entitled “Indemnity and Contribution,” and the last paragraph of Section 10 below, the
Underwriters will pay all of their costs and expenses, including fees and disbursements of
their counsel, transfer taxes payable on resale of any of the Securities by them and any
advertising expenses connected with any offers they may make.




     (j) If the third anniversary of the initial effective date of the Registration
Statement occurs before all the Securities have been sold by the Underwriters, prior to
the third anniversary to file a new shelf registration statement and to take any other
action necessary to permit the public offering of the Securities to continue without
interruption; references herein to the Registration Statement shall include the new
registration statement declared effective by the Commission;




     (k) During the period beginning on the date hereof and continuing to and including
the Closing Date, not to offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company or



17









 







warrants to purchase or otherwise acquire debt securities of
the Company substantially similar to the Securities (other than (i) the Securities, (ii)
commercial paper issued in the ordinary course of business or (iii) securities or warrants
permitted with the prior written consent of the Manager identified in Schedule I with the
authorization to release this lock-up on behalf of the Underwriters).




     (l) To prepare a final term sheet relating to the offering of the Securities, in the
form of Schedule IV hereto, and to file such final term sheet within the period required
by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have
been established for the offering of the Securities.



     7. Covenants of the Underwriters. Each Underwriter severally covenants with the Company not
to take any action that would result in the Company being required to file with the Commission
under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that
otherwise would not be required to be filed by the Company thereunder, but for the action of the
Underwriter.



     8. Indemnity and Contribution. (a) The Company agrees to indemnify and hold harmless each
Underwriter, its directors and officers, each person, if any, who controls any Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each
affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act from and
against any and all losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any preliminary prospectus, the
Time of Sale Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under the
Securities Act, any Company information that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act or the Prospectus or any amendment or supplement
thereto, or caused by any omission or alleged omission to state therein a material fact required to
be stated therein or
necessary to make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use therein.




     (b) Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to such Underwriter, but only with reference



18









 







to information
relating to such Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use in the Registration Statement, any preliminary prospectus,
the Time of Sale Prospectus, any issuer free writing prospectus or the Prospectus or any
amendment or supplement thereto. The Company acknowledges that the statements set forth
in the fourth (regarding selling concessions and reallowances), sixth (regarding
over-allotment, syndicate covering transactions and stabilizing transactions), seventh
(regarding penalty bids) and eighth (effect of stabilization transactions) paragraphs
under the heading “Underwriting” and the two paragraphs under the heading
“Underwriting—Conflicts of Interest” in any preliminary prospectus and the Prospectus
constitute the only information relating to an Underwriter furnished to the Company in
writing by an Underwriter through you expressly for use in the Registration Statement, any
preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus or
the Prospectus or any amendment or supplement thereto.




     (c) In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought pursuant to
Section 8(a) or 8(b), such person (the “indemnified party”) shall promptly notify the
person against whom such indemnity may be sought (the “indemnifying party”) in writing and
the indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified party and
any others the indemnifying party may designate in such proceeding and shall pay the
reasonable fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such indemnified party unless
(i) the indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood that
the indemnifying party shall not, in respect of the legal expenses of any indemnified
party in connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties and that all such fees and expenses shall
be reimbursed as they are incurred. Such firm shall be designated in writing by the
Manager authorized to appoint counsel under this Section set forth in Schedule I hereto,
in the case of parties indemnified pursuant to Section 8(a), and by the Company, in the
case of parties indemnified pursuant to Section 8(b). The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,



19









 







the
indemnifying party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as contemplated by the
second and third sentences of this paragraph, the indemnifying party agrees that it shall
be liable for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such indemnifying party
of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such settlement.
No indemnifying party shall, without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement (i) includes an unconditional
release of such indemnified party from all liability on claims that are the subject matter
of such proceeding and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any indemnified party.




     (d) To the extent the indemnification provided for in Section 8(a) or 8(b) is
unavailable to an indemnified party or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the other hand
from the offering of the Securities or (ii) if the allocation provided by clause 8(d)(i)
above is not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 8(d)(i) above but also the relative
fault of the Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the other hand in
connection with the offering of the Securities shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the Securities (before
deducting expenses) received by the Company and the total underwriting discounts and
commissions received by the Underwriters bear to the aggregate initial public offering
price of the Securities as set forth in the Prospectus. The relative fault of the Company
on the one hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact



20









 







relates to information
supplied by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or
omission. The Underwriters’ respective obligations to contribute pursuant to this Section
8 are several in proportion to the respective principal amounts of Securities they have
purchased hereunder, and not joint.




     (e) The Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 8 were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations referred to in
Section 8(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The remedies provided
for in this Section 8 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in equity.




     (f) The indemnity and contribution provisions contained in this Section 8 and the
representations, warranties and other statements of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of any
Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter or
by or on behalf of the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Securities.



     9. Termination. The Underwriters may terminate this Agreement by notice given by you to the
Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on the New York Stock Exchange,
(ii) trading of any securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance
services in the United States or through the Euroclear



21









 







System or Clearstream shall have occurred,
(iv) any moratorium on commercial banking activities shall have been declared by Federal or New
York State authorities or (v) there shall have occurred any outbreak or escalation of hostilities,
or any change in financial markets or any calamity or crisis that, in your judgment, is material
and adverse and which, singly or together with any other event specified in this clause 9, makes
it, in your judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of
the Securities on the terms and in the manner contemplated in the Time of Sale Prospectus or the
Prospectus.



     10. Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.



     If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase
Securities that it has or they have agreed to purchase hereunder on such date, and the aggregate
principal amount of Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal amount of the
Securities to be purchased on such date, the other Underwriters shall be obligated severally in the
proportions that the principal amount of Securities set forth opposite their respective names in
Schedule II bears to the aggregate principal amount of Securities set forth opposite the names of
all such non-defaulting Underwriters, or in such other proportions as you may specify, to purchase
the Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase on such date; provided that in no event shall the principal amount of Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 10 by an amount in excess of one-ninth of such principal amount of Securities without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Securities and the aggregate principal amount of
Securities with respect to which such default occurs is more than one-tenth of the aggregate
principal amount of Securities to be purchased on such date, and arrangements satisfactory to you
and the Company for the purchase of such Securities are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case either you or the Company shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus
or in any other documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.



     If this Agreement shall be terminated by the Underwriters, or any of them, because of any
failure or refusal on the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason the Company shall be unable to perform its
obligations under this Agreement the Company will reimburse the Underwriters or such Underwriters
as have so



22









 







terminated this Agreement with respect to themselves, severally, for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated hereunder.



     11. Entire Agreement. (a) This Agreement, together with any contemporaneous written
agreements and any prior written agreements (to the extent not superseded by this Agreement) that
relate to the offering of the Securities, represents the entire agreement between the Company and
the Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the
Securities.




     (b) The Company acknowledges that in connection with the offering of the Securities:
(i) the Underwriters have acted at arms length, are not agents of, and owe no fiduciary
duties to, the Company or any other person, (ii) the Underwriters owe the Company only
those duties and obligations set forth in this Agreement and prior written agreements (to
the extent not superseded by this Agreement), if any, and (iii) the Underwriters may have
interests that differ from those of the Company. The Company waives to the full extent
permitted by applicable law any claims it may have against the Underwriters arising from
an alleged breach of fiduciary duty in connection with the offering of the Securities.



     12. Counterparts. This Agreement may be signed in two or more counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and hereto were upon the
same instrument.



     13. Applicable Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.



     14. Headings. The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement



     15. Notices. All communications hereunder shall be in writing and effective only upon receipt
and if to the Managers shall be delivered, mailed or sent to Morgan Stanley & Co. Incorporated,
1585 Broadway, 29th Floor, New York, New York 10036 facsimile number: (212) 507-8999
(Attention: Investment Banking Division), to UBS Securities LLC, 677 Washington Blvd, Stamford,
Connecticut 06901, facsimile number: (203) 719-0495 (Attention: Fixed Income Syndicate ); and if to
the Company shall be delivered, mailed or sent to Dr Pepper Snapple Group, Inc., 5301 Legacy Drive,
Plano, Texas 75024 facsimile number: (972) 673-7879 (Attention: John Stewart, Executive Vice
President & Chief Financial Officer).



[Remainder of page left intentionally blank; signatures appear on next page.]





23











 






     If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.



	 	 	 	 	 
	 	Very truly yours,



DR PEPPER SNAPPLE GROUP, INC.

 	 
	 	By:  	/s/ John O. Stewart
 	 
	 	 	Name:  	John O. Stewart 	 
	 	 	Title:  	Executive Vice President
and
Chief Financial Officer 	 
	 



Accepted as of the date hereof




	 	 	 	 	 
	MORGAN STANLEY & CO. INCORPORATED

UBS SECURITIES LLC



Acting severally on behalf of themselves

and the several Underwriters named in

Schedule II hereto



MORGAN STANLEY & CO. INCORPORATED

 	 	 
	By:  	/s/ Yurij Slyz
 	 	 
	 	Name:  	Yurij Slyz 	 	 
	 	Title:  	Vice President 	 	 
	 	 
	UBS SECURITIES LLC

 	 	 
	By:  	/s/ Christian Stewart
 	 	 
	 	Name:  	Christian Stewart 	 	 
	 	Title:  	Managing Director, UBS Investment Bank 	 	 
	 	 
	By:  	        /s/ Michael Kochis
 	 	 
	 	Name:  	Michael Kochis 	 	 
	 	Title:  	Associate Director, UBS Securities LLC 	 	 



 









 






	 	 	 	 	 



SCHEDULE I




	 	 	 
	Managers:

	 	Morgan Stanley & Co.
Incorporated

UBS Securities LLC
	 
	 	 
	Manager authorized to
release lock-up under
Section 2:

	 	Morgan Stanley & Co. Incorporated
	 
	 	 
	Manager authorized to
appoint counsel under
Section 8(c):

	 	Morgan Stanley & Co. Incorporated
	 
	 	 
	Applicable Time:

	 	3:45 p.m., EST, on December 14, 2009
	 
	 	 
	Indenture:

	 	Indenture dated as of December 15,
2009 between the Company and the
Trustee
	 
	 	 
	Trustee:

	 	Wells Fargo Bank, N.A.
	 
	 	 
	Registration Statement File No.:

	 	333-163697
	 
	 	 
	Time of Sale Prospectus

	 	Basic Prospectus dated December 14,
2009 relating to the Shelf
Securities
	 
	 	 
	 

	 	the preliminary prospectus
supplement dated December 14, 2009
relating to the Securities
	 
	 	 
	 

	 	final term sheet dated December 14,
2009 relating to the Securities
	 
	 	 
	Securities to be purchased:

	 	$400,000,000 1.70% Senior Notes due
2011;
	 

	 	$450,000,000 2.35% Senior Notes due
2012
	 
	 	 
	Aggregate Principal Amount:

	 	$850,000,000
	 
	 	 
	Purchase Price:

	 	99.699% of the principal amount of
the Notes due 2011, plus accrued
interest, if any, from December 21,
2009; and 99.688% of the principal
amount of the Notes due 2012, plus
accrued interest, if any, from
December 21, 2009






I-1









 






	 	 	 
	Maturity:

	 	December 21, 2011; and
December 21, 2012
	 
	 	 
	Interest Rate:

	 	1.70% per annum for the Notes due
2011, accruing from December 21,
2009; and 2.35% per annum for the
Notes due 2012, accruing from
December 21, 2009
	 
	 	 
	Interest Payment Dates:

	 	June 21 and December 21, commencing
June 21, 2010
	 
	 	 
	Closing Date and Time:

	 	December 21, 2009 10:00 a.m.
	 
	 	 
	Closing Location:

	 	Mayer Brown LLP
	 

	 	1675 Broadway
	 

	 	New York, New York 10019







I-2









 








SCHEDULE II




	 	 	 	 	 	 	 	 	 
	 	 	Principal Amount of	 	 	Principal Amount of	 
	 	 	Notes due 2011 To	 	 	Notes due 2012	 
	Underwriter	 	Be Purchased	 	 	To Be Purchased	 
	 
	 	 	 	 	 	 	 	 
	Morgan Stanley & Co. Incorporated
	 	$	160,000,000	 	 	$	180,000,000	 
	UBS Securities LLC
	 	 	160,000,000	 	 	$	180,000,000	 
	Banc of America Securities LLC
	 	 	20,000,000	 	 	 	22,500,000	 
	Goldman, Sachs & Co.
	 	 	20,000,000	 	 	 	22,500,000	 
	J.P. Morgan Securities Inc.
	 	 	20,000,000	 	 	 	22,500,000	 
	Wells Fargo Securities, LLC
	 	 	20,000,000	 	 	 	22,500,000	 
	 
	 	 	 	 	 	 
	Total
	 	$	400,000,000	 	 	$	450,000,000	 
	 
	 	 	 	 	 	 







II-1











 





Schedule III




List of Guarantors




234DP Aviation, LLC

A&W Concentrate Company

Americas Beverages Management GP

AmTrans, Inc.

Berkeley Square U.S., Inc.

Beverage Investments LLC

Beverages Delaware Inc.

DP Beverages Inc.

DPS Americas Beverages Investments, Inc.

DPS Americas Beverages, LLC

DPS Beverages, Inc.

DPS Business Services, Inc.

DPS Finance II, Inc.

DPS Holdings Inc.

DPS Holdings U.S.

Dr Pepper Company

Dr Pepper/Seven-Up Beverage Sales Company

Dr Pepper/Seven Up Manufacturing Company

Dr Pepper/Seven Up, Inc.

High Ridge Investments US, Inc.

International Beverage Investments GP

International Investments Management LLC

Mott’s General Partnership

Mott’s LLP

MSSI LLC

Nantucket Allserve, Inc.

Nuthatch Trading US, Inc.

Pacific Snapple Distributors, Inc.

Royal Crown Company, Inc.

Snapple Beverage Corp.

Snapple Distributors, Inc.

Splash Transport, Inc.

The American Bottling Company





III-1









 








Schedule IV




Form of Final Term Sheet




Supplementing the Preliminary Prospectus

Supplement dated December 14, 2009

(To Prospectus dated December 14, 2009)




$850,000,000

Dr Pepper Snapple Group Inc.




$400,000,000 1.70% Senior Notes due 2011

$450,000,000 2.35% Senior Notes Due 2012




Final Term Sheet




December 14, 2009







	 	 	 	 	 
	 	 	1.70% Senior Notes due 2011	 	2.35% Senior Notes due 2012
	Issuer:
	 	Dr Pepper Snapple Group, Inc.
	 	Dr Pepper Snapple Group, Inc.
	Security:
	 	1.70% Senior Notes due 2011
	 	2.35% Senior Notes due 2012
	Size:
	 	$400,000,000
	 	$450,000,000
	Maturity Date:
	 	December 21, 2011
	 	December 21, 2012
	Coupon (Interest Rate):
	 	1.70%
	 	2.35%
	Interest Payment Dates:
	 	Each June 21 and December 21,

beginning on June 21, 2010.
	 	Each June 21 and December 21,
beginning on June 21, 2010.
	Price to Public (Issue Price):
	 	99.924%
	 	99.963%
	Trade Date:
	 	December 14, 2009
	 	December 14, 2009
	Settlement Date (T+5):
	 	December 21, 2009
	 	December 21, 2009
	Yield to Maturity:
	 	1.739%
	 	2.363%
	Benchmark Treasury:
	 	UST 0.75% due November 30, 2011
	 	UST 1.125% due December 15, 2012
	 	 	 	 	 
	Benchmark Treasury Price and Yield:
	 	99-26+; 0.839%
	 	99-12+; 1.333%
	Spread to Benchmark Treasury:
	 	0.90% (90 basis points)
	 	1.03% (103 basis points)
	Make-Whole Call:
	 	T+ 15 basis points.
	 	T+ 20 basis points.
	CUSIP Number:
	 	26138E AK5
	 	26138E AL 3
	Joint Book-Running Managers:
	 	Morgan Stanley & Co. Incorporated

UBS Securities LLC
	 	Morgan Stanley & Co.
Incorporated
UBS Securities LLC

	 	 	 	 	 
	Co-Managers:
	 	Banc of America Securities LLC
	 	Banc of America Securities LLC
	 
	 	Goldman, Sachs & Co.
	 	Goldman, Sachs & Co.
	 
	 	J.P. Morgan Securities Inc.
	 	J.P. Morgan Securities Inc.
	 
	 	Wells Fargo Securities, LLC
	 	Wells Fargo Securities, LLC
	 
	Ratings:
	 	Moody’s:Baa3 (Stable Outlook/Positive Watch)
	 	Moody’s: Baa3 (Stable Outlook/Positive Watch)
	 
	 	S&P: BBB- (Positive Outlook/Positive Watch)
	 	S&P: BBB- (Positive Outlook/Positive Watch)








 




			
	Note: 	 	A securities rating is not a recommendation to buy, sell or hold securities and may be
subject to revision or withdrawal at any time




The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer




V-1









 







participating in the offering will arrange to send you the prospectus if you request it by
calling
Morgan Stanley & Co. Incorporated toll free at 1-866-718-1649 or UBS Securities LLC toll-free at
1-877-827-6444, ext. 561-3884.





V-2













 





Exhibit A




Opinion of Baker Botts L.L.P., counsel for the Company, pursuant to Section 6(c)




     (i) The Company has full power and authority to execute and deliver this Agreement, the
Securities and the Indenture (collectively, the “Company Transaction Documents”) and to perform its
obligations hereunder and thereunder. All action required to be taken by the Company for the due
and proper authorization, execution and delivery of each of the Company Transaction Documents and
the consummation of the transactions contemplated thereby has been duly and validly taken.



     (ii) This Agreement has been duly authorized, executed and delivered by the Company.



     (iii) The Base Indenture has been duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery thereof by Trustee, constitutes a valid and
legally binding agreement of the Company, enforceable against the Company in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights
generally or by equitable principles relating to enforceability (collectively, the “Enforceability
Exceptions”); the Base Indenture has been duly qualified under the Trust Indenture Act.



     (iv) The First Supplemental Indenture has been duly authorized, executed and delivered by the
Company and, assuming due authorization, execution and delivery thereof by the Guarantors and the
Trustee, constitutes a valid and legally binding agreement of the Company and the Guarantors,
enforceable against the Company and the Guarantors in accordance with its terms, subject to the
Enforceability Exceptions.



     (v) The Securities have been duly authorized, executed and delivered by the Company and,
assuming due authentication thereof by the Trustee, constitute valid and legally binding
obligations of the Company enforceable against the Company in accordance with their terms, subject
to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.



     (vi) Assuming the Guarantees have been duly authorized, executed and delivered by the
Guarantors, the Guarantees constitute valid and legally binding agreements of the Guarantors,
enforceable against the Guarantors in accordance with their terms, subject to the Enforceability
Exceptions.



Exhibit A, Page 1









 





     (vii) Each of the Transaction Documents conforms in all material respects to the descriptions
thereof contained in each of the Time of Sale Prospectus and the Prospectus.



     (viii) The execution, delivery and performance by the Company and each of the Guarantors of
each of the Transaction Documents to which it is a party, the issuance and sale of the Securities
(including the Guarantees thereof) and compliance by the Company and each Guarantor, as applicable,
with the terms thereof and the consummation of the transactions contemplated by the Transaction
Documents will not result in the violation of any law or statute of the United States or the State
of New York or, to our knowledge following inquiry of the Company’s management, any judgment,
order, rule or regulation of any United States or New York court or arbitrator or governmental or
regulatory authority having jurisdiction over the Company or any of the Guarantors, except for any
such violation that would not, individually or in the aggregate, have a Material Adverse Effect.



     (ix) No consent, approval, authorization, order, registration or qualification of or with any
United States federal or New York State governmental or regulatory authority or, to our knowledge
following inquiry of the Company’s management, any United States federal or New York State court or
arbitrator is required for the execution, delivery and performance by the Company and each
Guarantor, as applicable, of each of the Transaction Documents to which it is a party, the issuance
and sale of the Securities (including the Guarantees thereof) and compliance by the Company and
each Guarantor with the terms thereof and the consummation of the transactions contemplated by the
Transaction Documents, except for such consents, approvals, authorizations, orders and
registrations or qualifications as may be required under applicable state securities laws in
connection with the purchase and resale of the Securities by the Underwriters.



     (x) The statements in the Time of Sale Prospectus and the Prospectus under the captions
“Description of the Notes,” “Description of the Debt Securities,” and “Underwriting,” insofar as
such statements constitute summaries of documents referred to therein, fairly summarize in all
material respects the documents referred to therein.



     (xi) The statements in the Time of Sale Prospectus and the Prospectus under the captions
“Material U.S. Federal Income Tax Considerations,” insofar as such statements constitute summaries
of legal matters referred to therein, fairly summarize in all material respects the legal matters
referred to therein.



     (xii) Neither the Company nor any of the Guarantors is, and after giving effect to the
offering and sale of the Securities and the application of the proceeds of the sale of the
Securities as described in each of the Time of Sale Prospectus and the Prospectus, them will be,
an “investment company” or an entity



Exhibit A, Page 2









 







“controlled” by an “investment company” within the meaning of the Investment Company Act.



     (xiii) The Registration Statement has become effective under the Act; any required filing of
the Base Prospectus, any preliminary prospectus and the Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule
424(b); any required filing of any Issuer Free Writing Prospectus pursuant to Rule 433 has been
made in the manner and within the time period required by Rule 433; to the knowledge of such
counsel, no stop order suspending the effectiveness of the Registration Statement or any notice
objecting to its use has been issued, no proceedings for that purpose have been instituted or
threatened.



     (xiv) The Registration Statement and the Prospectus (except for the financial statements,
financial statement footnotes and financial schedules and other financial and statistical data
included therein and except for that part of the Registration Statement that constitutes the Form
T-1, as to which such counsel need not express any opinion) appear on their face to be
appropriately responsive in all material respects to the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder.



     (xv) Each document filed pursuant to the Exchange Act and incorporated by reference in the
Time of Sale Prospectus or the Prospectus (except for the financial statements, financial statement
footnotes and financial schedules and other financial and statistical data included therein, as to
which such counsel need not express any opinion) appeared on its face to be appropriately
responsive as of its filing date in all material respects to the requirements of the Exchange Act
and the applicable rules and regulations of the Commission thereunder.



     Such counsel shall also state that nothing has come to their attention that causes such
counsel to believe that (i) any part of the Registration Statement, when such part became
effective, (except for the financial statements, financial statement footnotes and financial
schedules and other financial and statistical data included therein and except for that part of the
Registration Statement that constitutes the Form T-1, as to which such counsel need not express any
belief) contained any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not misleading, (ii) the
Time of Sale Prospectus (except for the financial statements, financial statement footnotes and
financial schedules and other financial and statistical data included therein, as to which such
counsel need not express any belief) as of the Applicable Time, contained any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made not misleading or
(iii) the Prospectus (except for the financial statements, financial statement footnotes and
financial schedules and other financial and



Exhibit A, Page 3









 







statistical data included therein, as to which such counsel need not express any belief), as of its
date and as of the Closing Date, contained or contains any untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made not misleading.




Exhibit A, Page 4









 








Exhibit B




Opinion of James L. Baldwin, Jr., Executive Vice President and

General Counsel of the Company, pursuant to Section 6(c)




     (i) The Company and the Guarantors have been duly organized and are validly existing and in
good standing under the laws of their respective jurisdictions of organization, and to the best of
his knowledge, are duly qualified to do business and are in good standing in each jurisdiction in
which their respective ownership or lease of property or the conduct of their respective businesses
requires such qualification, except where the failure to be so qualified or in good standing would
not, individually or in the aggregate, have a Material Adverse Effect. The Company and the
Guarantors have all power and authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged.



     (ii) Each Guarantor has full power and authority to execute and deliver the First Supplemental
Indenture (including each Guarantee set forth in the Indenture) (collectively, the “Guarantor
Transaction Documents” and, together with the Company Transaction Documents, the “Transaction
Documents”). All action required to be taken by each of the Guarantors for the due and proper
authorization, execution and delivery of the Guarantor Transaction Documents and the consummation
of the transactions contemplated thereby will have been duly and validly taken.



     (iii) The Company has an authorized capitalization as set forth in each of the Time of Sale
Prospectus and the Prospectus under the heading “Capitalization”; and all the outstanding shares
of capital stock or other equity interests of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non- assessable, except where the failure to be
so authorized, issued, fully paid and non- assessable would not, individually or in the aggregate,
have a Material Adverse Effect, and are owned directly or indirectly by the Company (except in the
case of any foreign subsidiary, for directors’ qualifying shares), free and clear of any material
lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim
of any third party.



     (iv) To my knowledge, except as described in each of the Time of Sale Prospectus and the
Prospectus, there are no legal, governmental or regulatory investigations, actions, suits or
proceedings pending to which the Company or any of its subsidiaries is a party or to which any
property of the Company or any of its subsidiaries is the subject that, individually, if determined
adversely to the Company or any of its subsidiaries, would reasonably be expected to have a
Material Adverse Effect; and to my knowledge, no such investigations, actions, suits or proceedings
are threatened.



Exhibit B, Page 1









 





     (v) The First Supplemental Indenture has been duly authorized, executed and delivered by
Guarantors.



     (vi) The Guarantees have been duly authorized, executed and delivered by the Guarantors.



     (vii) The execution, delivery and performance by the Company and each of the Guarantors of
each of the Transaction Documents to which it is a party, the issuance and sale of the Securities
(including the Guarantees thereof) and compliance by the Company and each Guarantor, as applicable,
with the terms thereof and the consummation of the transactions contemplated by the Transaction
Documents will not (i) conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or the Guarantors pursuant to, any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company or any of the Guarantors is a party or by which the Company or any of the Guarantors is
bound or to which any of the property or assets of the Company or any of the Guarantors is subject,
(ii) result in any violation of the provisions of the charter or bylaws or similar organizational
documents of the Company or any of the Guarantors or (iii) result in the violation of any law or
statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or
regulatory authority having jurisdiction over the Company or any of the Guarantors, except, in the
case of clauses (i) and (iii) above, for any such conflict, breach, violation or default that would
not, individually or in the aggregate, have a Material Adverse Effect.



     (viii) No consent, approval, authorization, order, registration or qualification of or with
any court or arbitrator or governmental or regulatory authority is required for the execution,
delivery and performance by the Company and each Guarantor, as applicable, of each of the
Transaction Documents to which it is a party, the issuance and sale of the Securities (including
the Guarantees thereof) and compliance by the Company and each Guarantor with the terms thereof and
the consummation of the transactions contemplated by the Transaction Documents, except for such
consents, approvals, authorizations, orders and registrations or qualifications as may be required
under applicable state securities laws in connection with the purchase and resale of the Securities
by the Underwriters.



     Such counsel shall also state that nothing has come to his attention that causes him to
believe that (i) any part of the Registration Statement, when such part became effective, (except
for the financial statements, financial statement footnotes and financial schedules and other
financial and statistical data included therein and except for that part of the Registration
Statement that constitutes the Form T-1, as to which such counsel need not express any belief)
contained any



Exhibit B, Page 2









 







untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) the Time of Sale
Prospectus (except for the financial statements, financial statement footnotes and financial
schedules and other financial and statistical data included therein, as to which such counsel need
not express any belief) as of the Applicable Time, contained any untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made not misleading or (iii) the
Prospectus (except for the financial statements, financial statement footnotes and financial
schedules and other financial and statistical data included therein, as to which such counsel need
not express any belief), as of its date and as of the Closing Date, contained or contains any
untrue statement of a material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made not
misleading.




Exhibit B, Page 3